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Joint Select Committee on Australia's Immigration Detention Network - 22/11/2011 - Australia’s immigration detention network

HARTLAND, Ms Kerri, Deputy Director-General, Australian Security Intelligence Organisation

IRVINE, Mr David Taylor, Director-General, Australian Security Intelligence Organisation

CHAIR: I declare open this hearing of the parliamentary Joint Committee on Australia's Immigration Detention Network and welcome the witnesses. The committee has your submission before it and I invite you to make a brief opening statement before we begin our questions.

Mr Irvine : Thank you. We acknowledge that the issue of how best to manage the arrival by irregular means of individuals seeking protection is clearly a challenging one. ASIO's function is to support the department of immigration in its management of irregular maritime arrivals, and we do so by providing advice on whether it would be consistent with the requirements of Australian security for an IMA, if I can use that term, to hold a permanent protection visa. That is only one, of course, of the considerations that the department of immigration takes into account when considering whether an individual is eligible for a visa.

Where ASIO concludes that it would be not consistent with the requirements of Australia's security for a visa applicant to be allowed to reside permanently in Australia, we provide what is known as an adverse security assessment. I think it is important to put on the record that ASIO is, in fact, highly discriminating in the use of such assessments. We issue them only when we have strong grounds to believe that a person represents a security threat. That is reflected in the relatively small number of adverse security assessments issued. Of the nearly 7,000 security assessments that we have undertaken since January 2010, in relation to IMAs, we have issued only 54 adverse assessments and 19 qualified security assessments. That represents about one per cent of IMA security assessment cases. We therefore do not take a decision to issue an adverse security assessment lightly and nor are we contemptuous of or blase about the human rights of the individuals involved. We take very seriously our responsibility to behave ethically and professionally and, obviously, with the utmost probity.

I would also like to point out that we also provide security assessments for non-IMA visa applicants. We completed about 66,000 of those in the last two financial years and out of that we issued about 24 adverse security assessments. It is probably also important to clarify that, when we talk about the security threats against which we are assessing people, it is the threats that are set out in section 4 of the ASIO Act. That includes espionage, sabotage, threats to our defence systems, promotion of communal violence, and protection of border integrity is the last one. Here, the particularly relevant one is an issue of politically motivated violence, which, of course, contains within it the whole question of terrorism.

Those, by way of clarification, are the issues against which we make our assessments. That is probably all I need to say on that.

Mr KEENAN: Thank you for your opening statement. You probably would have seen a lot of the evidence that the committee has seen, where the security assessment process has been blamed as one of the choke points within the system. It is one of the reasons that has been cited for the trouble we have had within our detention network, and your submission referred to it. Why is it that you think ASIO has received some of the blame? Why is it that you have been targeted in this way?

Mr Irvine : I cannot answer that, except to say that our assessment tends to come towards the very end of the process. After a person has been assessed for refugee status, there is our assessment and there are subsequent health checks and other things that follow on from that. That is probably the reason. At the moment, we reckon that about 80 per cent of our assessments are completed in less than a week. The 20 per cent or less of remaining cases are what we call complex cases, which do require a much longer time if you are going to do a thorough assessment, basically with cause. At the moment, out of however many people are currently in detention, in community detention or are awaiting the conclusion of the process, there are 463 people awaiting a security assessment from ASIO.

Mr KEENAN: You said a week, but I think your submission said that the vast majority of assessments are done within two days.

Mr Irvine : That is the result of the triaging process that was introduced earlier this year. That process involves checking all of the applicants for asylum visas, protection visas, for some basic indicators that assist us and the Department of Immigration and Citizenship in deciding whether people should be referred to us for a more thorough check.

Mr KEENAN: What are those red flags that arise that make that process—

Mr Irvine : If you don't mind, I won't speak publicly about any of those indicators because you will find that, once they have wised up to what the indicators are, people will seek to get around the system.

Mr KEENAN: When I think about the enormity of the problems of large volumes of people coming down and making an assessment on them, how can you even positively identify people's identity in such a short space of time?

Mr Irvine : I have to say to you that it is very difficult in a short space of time, particularly as I think most IMAs in some way or other seem to go through one or two identity changes during the course of that process.

Mr KEENAN: Wouldn't it be an absolutely essential thing for being able to issue a security clearance to positively identify who people are?

Mr Irvine : We have other means gradually of identifying people and we have other intelligence means of finding out information about people.

Mr KEENAN: So someone could get a security clearance without ASIO actually being able to identify who they are or even confirming who they say they are?

Mr Irvine : We believe that by the end of the process where we are issuing an adverse assessment we have a very clear idea of who the person is and what that person's past has been. Having said that, I should have reminded you that in fact the actual process of identity confirmation is a process that is carried out by the department of immigration.

Mr KEENAN: They will come to you and say, 'This is this person'?

Mr Irvine : Yes.

Mr KEENAN: 'This is where they are from'?

Mr Irvine : We will receive all of the entry details and then, based on a set of indicators, we will work with Immigration to determine whether people should go straight on in the process or should be referred for further security checking.

Mr KEENAN: From the information the department provides are you comfortable that they have positively identified who people are? Do you verify that information or do you accept what you are given?

Mr Irvine : We look at a whole range of indicators and if we do have concerns about who a person is then prima facie we would make further inquiries.

Mr KEENAN: I am not really sure what that means. Do you get them by the boatload, for example? Do you get 116 people in one job lot?

Mr Irvine : Probably not in that number, but they go through immigration processing and we are part of that processing in terms of assessing whether or not they should be triaged into further security checking or they go straight into the next phase of the DIAC process.

Mr KEENAN: If someone were to give a false identity is that a red flag for ASIO?

Mr Irvine : It would make us look. But so many people do it that it is not uncommon. Are you talking about the triaging process? You were talking about the process that occurs after a person has been determined by immigration to be qualified for refugee status.

Mr KEENAN: I am trying to understand the process. When you say the triage process, I am not sure what you mean.

Mr Irvine : Let us suppose that 116 people arrive. Immigration collects information about those people relative to their claims, their names, their personal details and so forth. That is then measured against what we would regard as indicators for concern, and about 80 per cent to 90 per cent of people would not trigger those indicators of concern. Then they would then go on and be processed in the normal way to a decision by the minister that they be given protected visas. Those people who do trigger concerns—and they might be, say, 15 per cent or whatever of that 116—are then subject to a more thoroughgoing ASIO investigation in which we have access to all of the information that they have provided during the immigration process relative to their claims, and details about them, and that then forms the basis for our investigation. Out of that comes one of three results. The first is a non-prejudicial finding whereby we simply advise the department of immigration that we have no concerns about that person. The second is that we could issue what I will call qualified security assessments—and we have issued a number of these—where we identify that there are some security issues but we do not think they represents such a risk to security that a visa should not be issued. The third is where we have identified security issues and assess that person for whatever security reason to represent a threat to security such that a visa should not be issued.

Mr KEENAN: I appreciate all that. We have had a lot of feedback about the security assessment process through a whole raft of submissions from people who, I suspect, are not as well informed about it as you are. I am trying to understand how it actually works. There is a lot of people coming through. Most of them are cleared within a very short space of time. You might not even be able to confirm their identity during that process, is what I am hearing from you. Is that correct?

Mr Irvine : The triage process occurs very early after arrival, and, even though there might be doubts about some people's identity, they may not trigger other things and they will go straight into the immigration process. It will be up to the immigration processes to determine who they are and what happens to them. For those who are triaged in, we would certainly be asking a lot more questions about identity.

Mr KEENAN: So that is phase 1. They can arrive, everyone has looked at it in a pretty cursory way, and then there are a couple of people who you might think warrant further attention.

Mr Irvine : I may have misled you—

Mr KEENAN: And then people come in for a second round when they are given a positive refugee assessment, and then they looked at in a more in-depth way.

Mr Irvine : Actually, I may have misled you. There is an immigration process first that gets them to a point where they—

Senator HANSON-YOUNG: Immigration identity?

Mr Irvine : No. I have misled you—I am sorry. The process goes like this. The people arrive, and they are processed by immigration. When immigration determines that they are qualified for refugee status, they go to triage. I do not know how long that process between arrival and recommendation for refugee status takes, but, once that has occurred, they are all measured against the triaging process. Identity issues may have been resolved during that period. Once that occurs, the triage occurs. At the moment, probably 80 per cent go through; between 15 and 20 per cent come for further assessment. Those that go through then go through immigration processes to a recommendation to the minister. Those that come to us go through our security assessment process, and if they are found to be nonprejudicial they go back through the ordinary way. Have I made that more clear? I confess that I did not quite understand your question initially and I may have misled you.

Mr KEENAN: It is not particularly clear to me; I am not sure about other members of the committee. I am just trying to understand—and I apologise if I am being a bit slow to catch up: ASIO gets involved only once a person has been assessed as a refugee and they get involved firstly in a very—

Mr Irvine : At the present time, yes. As a result of the changes made in March.

Mr KEENAN: So how did it work prior to that?

Mr Irvine : Prior to that everyone was referred to ASIO, basically on arrival. And there were parallel processes going on.

Mr KEENAN: But ASIO are making the assessment about who they look at in more depth; it is not DIAC?

Mr Irvine : ASIO, working with DIAC, do that, but it is according to ASIO established criteria.

Mr MORRISON: This goes back to Mr Metcalfe's testimony at our first hearing: DIAC have a set of criteria that prequalifies someone to be either referred to ASIO or not referred to ASIO, and that is done only for people who have had a positive refugee status determination. So, once they have that, DIAC will make an assessment based on the criteria that ASIO has given them about whether they are going to refer a matter to you for review and to seek an assessment of their status—is that correct?

Mr Irvine : And what happens now is that DIAC will have basically decided on a recommendation that they be accorded refugee status, and then the process involves, at the moment, ASIO and DIAC together—

Mr MORRISON: This is what is unclear to me. I asked Mr Metcalfe these same questions a month or so ago, and his testimony was that ASIO and DIAC, principally driven by ASIO, had said, 'This is the set of criteria'—and I do not want to ask you what they are; that would not be appropriate—and DIAC officers are the ones who would apply those criteria to the applicant, and then make a decision as to whether that applicant's file would be referred to ASIO to be assessed.

Mr Irvine : Yes, you are absolutely right: that was the basic decision. But, in practice, what we have done to assist DIAC is to put a number of people into DIAC to assist them to make that triage decision.

Mr MORRISON: When did that happen?

Mr Irvine : Quite early on. It has been in operation now for some months.

Mr MORRISON: How many people have you got in there?

CHAIR: I do not know whether that is appropriate.

Mr MORRISON: Well, if Mr Irvine does not think it is appropriate, that is fine. Can we take that on notice? I am happy to put it on notice.

Mr Irvine : Yes, put it on notice.

Mr MORRISON: And we can take it in camera if necessary.

Mr Irvine : I am not sure of the exact number.

Mr MORRISON: So I can put that on notice and I am happy to receive it in camera.

CHAIR: If you think it can be publicly released—

Mr MORRISON: The concern was raised when Mr Metcalfe was before us that we were now asking DIAC officers to effectively make assessments about someone's security risk, albeit based on ASIO criteria, and there was a question mark around a DIAC officer's capacity to do that and, given that, for argument's sake, let us say, the criteria involved what region a person says they came from, how on earth would a DIAC officer be able to interrogate the veracity of a person's claim to be from a particular region? So my concern was that ASIO was not part of that decision. You were looking at the ones that were given to you but the ones you were not looking at you had had no part in deciding you were not looking at them.

Mr Irvine : We originally decided that it would be as you described, but in recent months we have been providing people over there to assist them in that process.

Mr MORRISON: What was the reason for that?

Mr Irvine : It was just, I think, to do with the numbers of people involved. This was a slightly new way for Immigration to handle these particular cases. I have to say, however, that DIAC on non-IMA cases, have always performed that initial triaging role. It is not a new thing for DIAC. But just the pressure of work and the issues involved—

Mr MORRISON: Given the differences in people's documentation—which is significant—it would be a lot easier for a DIAC officer to determine the identity of someone who is onshore, has arrived by air, has a passport and an entry visa than it would to determine the identity of someone in the 87 per cent of IMAs who arrive without such documentation. The risk profile of the two, I would have thought, would be fairly different.

Mr Irvine : Yes, and our initial assessment and decision was that the IMA cohort could be treated in the same way as other cohorts in respect of this initial triaging process. As things have developed, we have actually put people over there to help them do it.

Mr MORRISON: I am encouraged that you have, because it was a real concern that I had, that ASIO was not involved in that triaging process. But if I could just restate that for notice: when was the decision taken to actually do that? I would also like to know why that decision was taken, and was training provided to DIAC officers by ASIO for the implementation of that criteria, and, if so, what? Again, I am happy for you to take all of that on notice, unless you would like to comment now.

Mr Irvine : I will take it on notice.

Mr KEENAN: Can I just ask you about the statement you made before: that people you are assessing go through multiple changes of identity. I would have thought that it would be very difficult to issue a security assessment on someone who cannot even establish who they are. Is it the case that—

Mr Irvine : DIAC established the identity, and they—

Mr KEENAN: Just back to the question I had before: you feel very comfortable that that identity is positively assessed? So you know that this person is here—

Mr Irvine : I do not think in these circumstances we would ever feel 'very comfortable'. But, certainly, in looking at people who are triaged in for more thorough assessment, if we find that there is a divergence in identity we would no doubt advise Immigration. But there are other ways to get information about the people and it is not solely dependent on identity.

Mr KEENAN: One of the other things that has been difficult for the committee is that we are hearing a lot about the assessment processes and we have no idea about why people may have failed a security assessment. I am wondering—and you may or may not feel comfortable giving us this information but I think it is important—what is the range of reasons that people might fail that assessment?

Mr Irvine : I will not, if you do not mind, give specific reasons. What we do is, as I said in my opening statement, judge people against the criteria of security risk which is set out in the ASIO Act.

CHAIR: Section 4.

Mr KEENAN: I appreciate that. I have read your submission and I understand that. But it is very difficult for us to make an assessment. We have had a lot of feedback about the security vetting process. But we have no idea why someone might fail an assessment, besides something very general about 'national security' and about 'comparing it to the criteria that ASIO use'. Without getting examples about why that is, it makes it difficult for us to form a judgment about the process, particularly when so many people are telling us that it is a flawed process—sorry, that it is a process that has led to flaws within the system.

Mr Irvine : I can only come back and say that we make a very thorough assessment, which usually involves meeting with and talking to the people as well, and we reach a decision about whether or not that person could present a security risk to Australia or to Australians—or, indeed, if you are thinking in terms of support for terrorism, that Australia becomes a haven for the export of terrorism or the financing of terrorism overseas, because that engages our international obligations as well. I think that is as far as I could go in answering that question.

Mr KEENAN: What are the dangers in making that information public?

Mr Irvine : Once the criteria for making assessments are known, then you will find very quickly that all the applicants will have methods of evading or avoiding demonstrating those characteristics.

CHAIR: Can I just ask this question, if you are able to answer it? That criteria has been consistent for some time?

Mr Irvine : For a very long time.

CHAIR: For a very long time?

Mr Irvine : Yes.

CHAIR: Through different persuasions of government? It has not been changed by differing governments—it has been consistent throughout?

Mr Irvine : No, we are required to assess against section 4 of the act, but that actually has changed, but with the addition now of protection of border integrity. That was a recent change.

CHAIR: That was added. Nothing has been subtracted?

Mr Irvine : No, nothing.

CHAIR: The other criteria has been consistent for a very long time under the ASIO Act?

Mr Irvine : All the way through, yes.

CHAIR: Okay. Thank you.

Mr KEENAN: Finally, because I will have to move on to other members of the committee. We have heard a lot of evidence with groups saying that it would be useful if some of the decisions you make could be judicially appealable, there could be a right of appeal so people can see the charges, if you like, that have been made against them. I just wanted to give you a right of reply to that, because I am sure you would have seen that evidence as well about why that may be problematic and whether ASIO would have particular concerns about that.

Mr Irvine : Let me by way of explanation say two things. We have to operate according to the law. Back in 1997 Mr Justice hope, when he wrote that absolutely seminal report—

CHAIR: 1997?

Mr Irvine : 1977, sorry. You got me!

CHAIR: I was at law school at the time, but I was paying attention.

Mr Irvine : I was younger then, too. At that time he considered the whole question of appeals against the ASIO assessment process. He recommended that Australian citizens, and a few other categories of people, should be allowed to appeal but he recommended against appeal rights for noncitizens. What he wrote was this:

The claim of noncitizens who are not permanent residents but who are in Australia to be entitled to such an appeal is difficult to justify, particularly as they have no general appeal, and I shall recommend that they shall have no such right.

That was actually taken up in section 36 of the act. That is the legal basis on which we are operating.

CHAIR: Okay. Can I then follow that up, please. Was His Honour at that time talking about people who were in detention, because what we are talking about here—or what my concern is—is those people who have had an adverse assessment who under the current law could remain in detention for their terms of their natural life?

Mr Irvine : What I read out to you was exactly what he said, and he said no more. So I cannot—

CHAIR: But at that stage—I am not trying to put words in your mouth or his mouth—but the class of person, particularly, that the committee has heard evidence in relation to an where there is concern, relates to people who are as a result of an adverse assessment, as a result of government policy or whatever, been kept in detention without a right of merit review. Whereas we are also told in Canada, New Zealand and the UK they have different provisions that allow people in a particular class to assess the situation. I suppose what is also being asked of this committee is to look at a situation where someone who might be in effect security-cleared be placed into a position where they could do an assessment. You have given us some numbers. The 66,000 non-IMAs get 24 adverse assessments. Where they in custody?

Mr Irvine : No, they probably were not even in Australia.

CHAIR: Exactly. So no-one is arguing for them. You gave us figures of 54 adverse assessments and 19 qualified ones. How many of those are in custody?

Mr Irvine : I do not know.

CHAIR: I am just saying that this is where the questioning is occurring. I think everyone is trying to protect national security. No-one is trying to create a system that would allow national security to be impinged, but there are dramatic consequences as a result of where we are at this stage in terms of IMAs. I am not saying that an appeal mechanism will necessarily change the merits review, but your submission also does indicate that there are no merit reviews for these people.

Mr Irvine : That is currently the law; there are no merit reviews.

CHAIR: The question is whether we have a recommendation that says that there is a limited review, not necessarily of the material going to the person concerned but someone like an inspector general—now you have a monitor in relation to the terror laws—and someone who is security cleared who can be relied upon to do an assessment when it comes to merits review. We are not talking about hundreds or thousands of people here. We are talking about people who are in detention.

Mr Irvine : My job at the moment is to operate according to the law as it stands.

CHAIR: I understand that.

Mr Irvine : Whether IMAs or any other applicants for visas who are rejected on security grounds should be afforded merits review is essentially a matter for the government. Should the government introduce a merits review process for IMAs who are subject to adverse or qualified assessments, we will then work within that legal framework.

CHAIR: Is your baseline that national security should not be in any way impinged if government were to introduce such a mechanism, that it is quite a big part?

Mr Irvine : Yes, I would be very concerned about any derogation from the important national security concerns that we have.

Mr KEENAN: My original question was: if there was that merits review, would you see some negative implications that might arise from that?

Mr Irvine : I think that is advice I would have to give the government. But what I would say is: there are a number of factors that you would need to take into account. I think the chairman has alluded to a couple of them. What form of merits review would you have? Where would it go? What protections for other national security considerations would you have, including as far as I am concerned elements of national interest but also sources and methods for ASIO? What is the scope of that process? Would merits review apply to someone who we knocked back as a suspected spy for a foreign power, someone we gave an adverse assessment to on the basis that we thought that person might be coming to Australia to pursue the acquisition of parts of weapons of mass destruction or something like that or to conduct sabotage? How would the merits review process in those circumstances protect us from a foreign government probing our sources and methods and so on? You would need to be very careful about how you applied such a process. Subsequently, there would be all sorts of resource and other implications, but that would be something for the government to decide.

Mr MORRISON: You mentioned a couple of figures in your opening remarks. You said 7,000 assessments have been undertaken since January 2010, with 54 adverse assessments. You then mentioned there were 66,000 assessments made. Were they non-IMA?

Mr Irvine : They are non-IMA assessments.

Mr MORRISON: For individuals who have made asylum claims?

Mr Irvine : No, not necessarily. They are people who have applied for a visa to come to Australia who, for whatever reason—

Mr MORRISON: So it could be a 457 or any form of visa?

Mr Irvine : It could be any form of visa.

Mr MORRISON: Would you be able to provide to the committee on notice the number of negative assessments you have made for non-IMA onshore asylum claimants?

Mr Irvine : Was it 24?

Mr MORRISON: There were 24 adverse security assessments, but that was for the 66,000 assessments you made for everyone who applied for a whole range of different visa classes. What I am trying to understand is, of those who have made an application onshore—I think it is the 8-series visas—for asylum and have been successful, so they have come by plane basically—

Mr Irvine : I would not be able to provide those figures to you immediately.

Mr MORRISON: Can you just take it on notice?

Mr Irvine : I will take that on notice. I am just not sure of that figure at all.

Mr MORRISON: You have got a rate of negative assessment of those on the IMAs of one in 129, and for the balance of the applications it is one in 2,750. That is 21 times—

CHAIR: No. It is not one in 129. The figure was 70,000—

Mr MORRISON: No. It was 54 out of 7,000.

CHAIR: No. It was 70,000.

Mr MORRISON: No.

CHAIR: Sorry; it was 7,000.

Mr MORRISON: So my figures are right: one out of 129.

Mr Irvine : I will test your mathematics. It was actually not 7,000; it was 6,982.

Mr MORRISON: I expect that roughly falls into the same parameters. I have already covered the issue of the prequalification. If we need to clarify through the committee the specific thing—

Mr Irvine : I have just been passed a paper which I was not aware that we were holding, but it says that there were no adverse assessments issued for people seeking onshore protection visas.

Senator HANSON-YOUNG: In what year?

Mr Irvine : Most of the adverse assessments were for people seeking temporary visas.

Mr MORRISON: To follow up Senator Hanson-Young's question, what period was that for? Are we talking about since January 2010?

Mr Irvine : In the three years 2008-09, 2009-10 and 2010-11, there were no adverse assessments for onshore protection visas.

Mr MORRISON: Well, that goes even further. But we had 54 for IMAs from 1 January 2010 and none otherwise.

Mr Irvine : Yes.

Mr MORRISON: You would also provide assessments for offshore applicants, for those who have been granted. Is that right?

Mr Irvine : Yes, we can, if they are referred to us.

Mr MORRISON: For those under the 200-class visas, so offshore applications through the UNHCR and the humanitarian program. I am happy for you to take it on notice.

Mr Irvine : I will have to take it on notice.

Mr MORRISON: The process you have to make an assessment, as we have determined, is based on the reference that has come from DIAC, with the support of your own officers. Where someone is to be released into the community, though, that person may not have been in a position to be referred, because they actually have not received a positive refugee status determination.

Mr Irvine : That is true.

Mr MORRISON: Are you requested by DIAC to do an assessment of anyone they decide to release into the community?

Mr Irvine : Yes, we are and we do. But I have to stress that it is a very different assessment from the one you do for a permanent visa.

Mr MORRISON: Are you able to give us an idea? I do not want you to have to betray national secrets, but is it a longer process? Does it take a lot longer?

Mr Irvine : No. It is a very much shorter process, because we are just looking at primary indicators that would suggest that this person, if released into the community, would not be an immediate security risk.

Mr MORRISON: So, if the government were to follow through with the policy they announced a month or so ago, where not only would those who are vulnerable or children be released into the community but so would single males, you would have to go back to assessing everybody?

Mr Irvine : We would do a basic security check of that person against our holdings.

Mr MORRISON: But at the moment if they are actually in detention you do not have to do any assessment on them until they have reached a point where they have got a positive refugee status determination.

Mr Irvine : That is correct.

Mr MORRISON: So that would actually create a workload for ASIO to then check everyone else that would be released into the community.

Mr Irvine : It will create an additional workload but it is one that in discussions with Immigration we think we can manage.

Mr MORRISON: You mentioned 7,000 assessments undertaken since 1 January 2010. How does that workload compare to 2006-07, four years ago, for IMAs?

Mr Irvine : I do not have the figures for the early—

CHAIR: He does, Mr Irvine. He knows very well.

Mr Irvine : I do not have those figures in front of me.

Mr MORRISON: Were you aware that ASIO had to conduct many assessments in 2007 for IMAs?

Mr Irvine : I was not in ASIO at the time. I will have to get it.

CHAIR: They have been doing a lot of fishing.

Mr MORRISON: If ASIO can confirm that that would be helpful.

Mr Irvine : I can tell you that in 2008-09 we did 207.

Mr MORRISON: If there are figures for 2007-08 I would be interested.

Mr Irvine : I do not have those.

Mr MORRISON: If we could get that on notice and for 2006-07 I would be grateful.

Senator HANSON-YOUNG: I want to ask in a bit more detail about the assessments that are done for people being released into the community for community detention. Can I clarify this. Taking the simpler test that you do, which you have said you can conduct within 24 hours, would you routinely do that for everybody in detention anyway in the first instance before you delve into the more in-depth one, if indeed they were given a positive determination of refugee status?

Mr Irvine : We would. At the moment Immigration is referring to us anyone it wishes to release into community detention. That does not prejudice in any way our ability subsequently, once they have been declared 1A met, to conduct a much different assessment process.

Senator HANSON-YOUNG: Are you required to conduct that additional assessment even if they have been released into the community and you have already done the initial assessment?

Mr Irvine : Yes, because it is a very different assessment process.

Senator HANSON-YOUNG: I accept that, but you do that as a matter of course and you will always do the secondary test?

Mr Irvine : Only if they have been triaged in. A person arrives and Immigration decide that person should be released into community detention and they ask us if we have any concerns about that—and that is one part of the process. Subsequently whether they are released into community detention or not there is an Immigration determination process. They get to that 1A-met point and that triggers the triage which we do. That triage process sifts out about 80 per cent of people and the other 20 per cent are referred to ASIO for—

Senator HANSON-YOUNG: So they are subject to, as you put it, the triage process even after they have already had that initial quicker, simpler test?

Mr Irvine : Yes, because that triage process is based on the information that has been acquired during the refugee application process.

Senator HANSON-YOUNG: So in some senses some people could actually have three different types of assessments or levels of assessment: community detention, the triage process and then that if they are finally referred to you before they are given a permanent visa.

Mr Irvine : Yes, but they are not three equal processes.

Senator HANSON-YOUNG: I accept that— three different levels.

Mr Irvine : The first one is relatively light and could never, I think, be considered as any impediment to the overall progress of a person through the process.

Senator HANSON-YOUNG: Where does that initial test assessment—this is the one that you do for people being released into community detention—fit in comparison to assessments that you would do for people who had applied for protection and then arrived by plane? Is it similar?

Mr Irvine : If a person arrived by plane and applied for protection and was referred to us by Immigration for the purposes of putting that person into community detention, it would be the same process.

Senator HANSON-YOUNG: Okay.

Mr Irvine : But they have got to refer it.

Senator HANSON-YOUNG: They would not be asking to put those people into community detention because they would have never been in detention in the first place if they were applying onshore. My point is: if somebody has arrived in Australia by plane and they then apply for a protection visa, are they subject to any type of ASIO security assessment?

Mr Irvine : If they are referred to us by immigration.

Senator HANSON-YOUNG: How often would that happen?

Mr Irvine : Off the top of my head I cannot tell you but I can probably find out.

CHAIR: You can take it on notice.

Senator HANSON-YOUNG: If they are referred to you, where does that test sit in those three different levels?

Mr Irvine : It depends what they have been referred for. If they have been referred to us simply to seek our view as to whether there are security concerns about that person going into community detention then our process would be the same as for IMAs referred to us. If they are for whatever reason not referred to us at that point and are held by Immigration in detention and the process goes on, there would be a triage process and a decision to refer them to us, and we would do the assessment after that. That would be a full assessment for a permanent protection visa.

Senator HANSON-YOUNG: If somebody is already in the community, perhaps their study visa has expired or their tourist visa has expired and maybe they are on a bridging visa while they are applying for permanent protection—they are not in detention; they are already in the community—what type of assessment would ASIO do on those people?

Mr Irvine : We may not do any at all. It would have to be referred to us by Immigration for that purpose.

Senator HANSON-YOUNG: What we really need to know is the percentage of people who are given permanent visas, who are already living in the community and who are then referred by DIAC to you, to ASIO, for a thorough assessment.

Mr Irvine : I cannot give you that figure. I would have to take that on notice.

Senator HANSON-YOUNG: If you could, that would be great.

CHAIR: If someone, for instance, is on a fiance visa, ASIO gets involved in determining before they get a permanent visa—

Mr Irvine : Not, Mr Chairman, if they have not been referred to us. They have to trigger concerns within DIAC.

Senator HANSON-YOUNG: I am referring to IMAs now as opposed to people who are already onshore and who have arrived by plane. For those people who have been referred to you because they have been listed for community detention, you say in your submission that that test can usually occur within 24 hours.

Mr Irvine : Yes.

Senator HANSON-YOUNG: Have there been any cases where you have not been able to (a) assess a person quickly and (b) give them clearance to move into the community?

Mr Irvine : I think there have been one or two cases where we gave an assessment that led to the person not being accepted. There have been one or two.

Senator HANSON-YOUNG: So it is not just a tick and flick. You are actually making an assessment, then, aren't you?

Mr Irvine : We are checking against the known criteria we have. Yes.

Senator HANSON-YOUNG: Okay, great. Can you just summarise for us what that means? Based on this assessment—ASIO believes this person is not a risk to the community—is it that simple? How would you categorise the resolution?

Mr Irvine : We provide assessments against a particular referral for a particular purpose. The assessment required for us to advise DIAC that a person can move into the community is a fairly basic check against the information we hold and what we know about the person.

Where we have someone referred to us for a permanent protection visa, and that person has been referred to us because in the triage process they have triggered indicators or concerns, then we conduct a much, much more thorough and extensive investigation because this is for a long-term permanent visa.

Senator HANSON-YOUNG: ASIO is pretty well resourced to conduct its own investigations and keep track of people who it wants to keep track of. In these assessments you must be making a call that suggests that if there were a problem you would know what was going on?

Mr Irvine : I would like to say that I could give you a 100 per cent guarantee that that was true: I cannot, of course.

Senator HANSON-YOUNG: No, but you make a call, don't you?

Mr Irvine : If we found a reason, as we have on a couple of occasions, not to recommend someone go into the community then those are resources we do not have to apply to that person while the person is in the community.

Senator HANSON-YOUNG: I have a question about people who have been given adverse security assessments but who are living in the community. I was questioning the time frame in the response to the question you gave to Mr Morrison around people who have applied for protection visas onshore, and that no-one has been found to have adverse security assessments. You may be right, if your figures are suggesting the last three years. Prior to that there have, of course, been cases. There was one that came across my desk today actually, which is why I went to check.

It was a family who were given an adverse security assessment in 2002, but they are living in the community. They had applied for protection after arriving by plane and having a different type of visa. They applied for protection visas and were found to have an adverse security assessment, but they are living in the community. Now, if you are comfortable with that I struggle to see how we cannot come up with a more workable solution for the dozens of people who are in immigration detention who have come up with adverse security assessments.

Mr Irvine : I am comfortable—that is probably not the word I would use—with a very small number, but I simply would not have the resources to provide the level of monitoring and so on that would be required over a long period of time for anyone with an adverse assessment to be in the community.

Senator HANSON-YOUNG: But we do have that situation now.

Mr Irvine : I do not want to go into it too deeply, but the question then reflects on the levels of quality of monitoring and the quality assurance that I can give the government in terms of national security considerations. It is a concern.

Senator HANSON-YOUNG: There is obviously a different level of acceptability. It seems to me there are two standards for assessing people's rights and privileges when applying for protection, depending on whether they arrived by boat or by plane. Now it seems we also have another set of criteria: an adverse security assessment may deem someone safe enough to be in the community, again based on how they arrived. To me everyone who has an adverse security assessment should surely be treated equally.

Mr Irvine : That is a question you could put to the Department of Immigration and Citizenship, who have to take the decisions on what happens to these people subsequent to our adverse assessment.

Senator HANSON-YOUNG: You don't make the decision about whether they live in the community or in detention?

Mr Irvine : No. We simply provide a security assessment that assists the department to make that decision.

Senator HANSON-YOUNG: I have a question about changing a person's assessment from adverse to non-adverse. I can understand how you would give a person an initial favourable assessment only to find later, with more information, that person to be adverse. There have been a number of cases, including one that I took particular note of in the Ombudsman's latest report on lengthy detention and which has since been resolved because of a change of assessment.

Mr Irvine : I am not sure of the case or cases you are referring to. We are always prepared if a person is re-referred or additional information comes to light to revise our judgment.

Senator HANSON-YOUNG: You do not do that routinely. You would only do that if you have been asked to by the immigration department. Is that right?

Mr Irvine : Or, alternatively, we did in our various investigations come across additional information.

Senator HANSON-YOUNG: It is not a case of ASIO giving a negative assessment and two years later reviewing that decision as a matter of course.

Mr Irvine : Not as a matter of course, no. There would usually be cause.

Senator HANSON-YOUNG: There would be a referral or a prompt, is that what you're saying?

Mr Irvine : Yes.

Senator HANSON-YOUNG: You don't have a process of review as a matter of course.

Mr Irvine : No.

Senator HANSON-YOUNG: Could you see any downside in having something like that?

Mr Irvine : The principal downside would be resources.

Senator HANSON-YOUNG: Sure, but resources aside—

Mr Irvine : That is so easy to say, Senator.

Senator HANSON-YOUNG: We have been saying we should overhaul the immigration system here today, so let's think outside the square.

Mr Irvine : Clearly, if the government wanted us and Immigration actually referred cases to us for review, we would do so.

Senator HANSON-YOUNG: How often would the immigration department ask for cases to be reviewed?

Mr Irvine : I cannot give you the figures on that. I do not think it is particularly often. I just don't know.

Senator HANSON-YOUNG: Would you be able to take that on notice for a 12-month or two-year period?

Mr Irvine : Yes, I will take that on notice.

Senator HANSON-YOUNG: In that, what I am interested in is, if a review has been requested, how often has that assessment been adjusted. Was the review worthwhile? I understand that we need to be very careful in making a risk assessment—it is a matter of balance.

Mr Irvine : Yes.

Senator HANSON-YOUNG: I want to get your opinion, Mr Irvine, on how negative assessments impact on children. When you make an assessment, what type of consideration do you give to the age of an individual and/or the age of dependants?

Mr Irvine : There is a canard going around at the moment that we do security assessments on young children. We do not. There may, one day, be a time when Immigration will refer to us a teenager for special consideration, but we simply do not subject children under the age of, I think, 16 to a security assessment process.

Senator HANSON-YOUNG: So 16-year-old or 17-year-old unaccompanied minors could be referred to you?

Mr Irvine : They could be. I do not know how many have.

Senator HANSON-YOUNG: Could you take that on notice?

Mr Irvine : Yes.

Senator HANSON-YOUNG: Obviously, an assessment on a parent or a guardian would have an impact on dependants. Is anything taken into consideration in those circumstances or are you simply looking at that individual, regardless of—

Mr Irvine : We simply have to look at the individual. I do not want to sound callous, but it would be a corruption of the process to take into account other family issues when you are issuing an assessment. The consideration of the family and the children should then come in as to how they are treated subsequently.

Senator HANSON-YOUNG: As a result of the assessment?

Mr Irvine : Yes.

Senator HANSON-YOUNG: You see that as an issue for the department of immigration as opposed to an issue for—

Mr Irvine : I see it as an issue for the government, but I do not think you should impose upon what we try to keep as a fairly direct and very specific process all sorts of other obligations to take social factors into account in an organisation that is solely focused on security. That is why I think it should indeed be the role of the government, whichever part of the government, to take that into account. Could I also just confirm—and this is a very important point—the security assessment is only one part of the process. There is a process of refugee status, health checks, character and other checks that are carried out, which also would have to be carried out very objectively.

Senator HANSON-YOUNG: You only look at the cases that have been referred to you from the department of immigration?

Mr Irvine : Unless something comes to light where we discover that, for whatever reason, we need to look at something.

Senator HANSON-YOUNG: Do you know what the criteria is by which the department decides to refer individual cases to you?

Mr Irvine : When we talk about IMAs, yes, we do. We set those criteria.

Senator HANSON-YOUNG: We were talking to Richard Towle earlier, from the UNHCR. He pointed out that, in the refugee convention, there is a very clear point right at the front, in article 1, that allows for countries to not assess somebody as a refugee if indeed they have committed very serious crimes or have been involved in war crimes. There is a specific part of the convention where the department can say, 'You have participated in this and by virtue of that you clearly do not fit the spirit of the convention.' If the department has such serious concerns that they refer cases to you, why did they not use that part of the convention? That does not make up any of your guidelines that you have spoken to the department about?

Mr Irvine : If a person is considered guilty of criminal offences or war crimes or whatever, they would probably refer them directly to the Australian Federal Police or back to the sending government or whatever. I do not know. They only refer cases to us where those cases directly relate to the heads of security under the ASIO Act 1979.

Senator HANSON-YOUNG: I assume that the guidelines the department uses that you have developed to assist them are not publicly available.

Mr Irvine : No.

Senator HANSON-YOUNG: You came up with those guidelines as part of this triage process to try and deal with the numbers of assessment. But, if ASIO only has to review the cases of people who the department refers to you anyway, why were you reviewing everybody before then? Was that just an understanding?

Mr Irvine : It was government policy inherited from previous governments that every IMA would be 'fully' checked.

Senator HANSON-YOUNG: So, not the 24-hour check but 'fully checked'.

Mr Irvine : Fully checked. And that policy went through until December last year. When the government decided to change that policy in December last year, they made a number of decisions. The first one was that they would abandon parallel processing, because we were finding that we were spending a lot of time processing people who did not eventually qualify to be refugees—

Senator HANSON-YOUNG: But, Mr Irvine, I would argue that actually most of those people now have been found to be—

Mr Irvine : Whatever. There are good arguments in favour of parallel processing. But at the present time, given the resources we have available and the numbers of people who have come in recent times, the current system of triaging at the end only those people who are on track to becoming refugees is frankly the best that we can do.

Senator HANSON-YOUNG: Let's just clarify. That is government policy; that is not dictated in legislation. It is not dictated in legislation that there is now a triage process; it is policy. Could we not have a situation where every person who arrives as an IMA has the first initial check that you are conducting for community detention and then has an assessment made, based on that, about whether somebody is a risk or not? If they are deemed to be a possible risk then they remain in detention, and the rest of them could move out into the community while the rest of their application process happens. You could then at any stage, decide to do a more thorough check on those people, if you wanted to, before they were given their permanent visa. For those who remain in detention, you would go through the process of doing that thorough check as a matter of course.

Mr Irvine : If the government decides—if the minister for immigration decides—that everyone who arrives will go into community detention—

Senator HANSON-YOUNG: or some type of—a bridging visa or—

Mr Irvine : Or whatever. They would refer those people to us for a security assessment or check, for that purpose.

Senator HANSON-YOUNG: Yes.

Mr Irvine : In the meantime, they would then have their application processed. Once their application had been processed and they were on track to be recommended for a visa, that is when we would do the more complete triage, based on a lot more information, which has been collected during the asylum application process, and that is when you would determine the 10 per cent or 15 per cent or maybe even 20 per cent of people who actually need a more thorough check.

Senator HANSON-YOUNG: So it is doable.

Mr Irvine : It is doable if—

CHAIR: It is a matter of policy.

Mr Irvine : We would have to adapt to whatever policy the government decided.

Senator HANSON-YOUNG: Sure. At the moment it is happening on a smaller scale with those who are simply being referred. So there is a bit of a trial process, I would argue, there.

Mr Irvine : Well, it is certainly happening, for those people who are being referred.

CHAIR: Thank you.

Mr OAKESHOTT: You mentioned 'within current resources' several times in that exchange. In that model you just stepped us through, I would imagine that would require substantial resources at your end. Have you done any work to put a figure on that?

Mr Irvine : No, we have not.

Mr OAKESHOTT: Would you be able to ballpark it?

Mr Irvine : No, not off the top of my head. I could take it on notice. But it is one of those 'pieces of string' questions, in the sense that it is going to depend on the actual numbers arriving at any one time, the way in which they are processed and the rate at which they are processed by DIAC itself and so on. There is a whole series of factors involved.

Mr OAKESHOTT: Could you use your best endeavours and come back to us based on current trends?

Mr Irvine : It would very much have to be best endeavours.

Mr OAKESHOTT: That is fine.

Mr MORRISON: Could you also give us an idea of what the annual cost is of undertaking the assessments you currently undertake for the IMAs? Do you have a figure of what it is currently costing you each year on the current system you are using for IMAs.

Mr Irvine : That is going to be an interesting question. We will take it on notice.

CHAIR: Take it on notice. We are not anticipating the report before March next year, so there is some time. We will consider the report in February. Thank you very much to both witnesses.